Want proportionality? Make the producing party act first.

May 12, 2014

Here’s a modest proposal for achieving proportionality in e-discovery. Scrap the whole ridiculous skit where the request for production is the opening salvo.

Instead, change the rules so the producing party makes the first move. Yes, I know it’s a little late to suggest this when the current round of rules amendments are so far down the road, but give this some thought.

By their very nature discovery requests tend to be overbroad, if not outright bellicose, commonly fashioned from boiler-plate precedents that include demands for telegrams and dicta-belts, and setting the stage for arguments and motions by casting a far wider net than necessary.

If they ask for it, you’d better look for it!

One of the two most controversial proposed amendments to the Federal Rules relates to proportionality. After the April meeting of the Rules Committee in Portland, revised Rule 26(b)(2)(1) will permit a party to

“obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.”

These well-chosen words are as good an attempt as we’ve seen to give guidance to the profession, and to address the problem of the discovery tail wagging the litigation dog because of the massive proliferation of potentially discoverable information in our electronic age.

But it won’t solve much.

This is because in the US we “request first — respond later” as set out in Rule 34. It’s always been done that way, well since 1938 anyway. Nobody has given that a second thought, neither the drafters of the latest amendments nor the thousands of public commenters, so while some details of Rule 34 will be changed, this basic paradigm was not touched. As long as it stays that way, we will still see much the same arguments over proportionality and scope, regardless of the (probably) helpful revisions to Rule 26(b)(2)(1). Because the existing model itself sets the stage for overreach and dispute.

Requesting parties issue vague and over-broad requests because the requestor doesn’t know and cannot anticipate how the opponent’s information is organized, or what range or subset might be all that’s necessary to cover all that is relevant. As a corollary to that, companies preserve electronic data more broadly than they should have to, just in case. Disputes over burden of production are misdirected from what documents really matter to what documents were over-broadly requested.

So once again I say: Make the producing party act first. That’s the way it’s done in Canada. Ontario is the largest common-law jurisdiction in Canada and the other eight English-speaking provinces usually follow its lead. So let’s look at the Ontario Rules of Civil Procedure. (Canada’s federal court system is not analogous to the US.)

Before going further, a disclosure and disclaimer: I am a dual citizen of Canada and the United States, received my J.D. from the University of Toronto, and practiced as a litigator in that city for 11 years before going into legal technology and electronic discovery consulting. I moved to Arizona in 1994. This is not a paean to the superiority of all things in Canadian law being superior to the US. Between US and Canadian law and procedure, the similarities vastly outweigh the differences. Everyone who has worked in litigation on both sides of the border would agree. But here is one seemingly minor difference in the rules that has a major beneficial impact in the practice.

I’d never listen to anything from THIS place.

Understand first that the scope of discovery in Ontario is virtually no different from the scope in the US. Ontario Rule 30.02 reads in part:

“30.02 (1) Every document relevant to any matter in issue in an action that is or has been in the possession, control or power of a party to the action shall be disclosed as provided in rules 30.03 to 30.10 whether or not privilege is claimed in respect of the document.”

(Obviously, this is not to say that privileged documents have to be turned over, but their existence must be disclosed and the reason for the claim of privilege stated, per Rule 30.03 (2)(b). How disclosure and production happens is covered in other subrules to Rule 30, and in the case of electronically stored information (ESI), also in Rule 29.1. My blog post from 2010 when Ontario Rule 29.1 was adopted covers this. )

Note that Ontario’s “Every document relevant to any matter in issue” sounds an awful lot like US Fed. R. Civ. P. 26(b)(1)’s “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.”

Where Ontario is
THIS Ontario. Not the town in California.

In neither the US or most of Canada is the scope of discovery restricted to just those documents on which a party intends to rely, unlike continental Europe.
French guy
Je vous donnerai rien!

While broad American discovery is not the norm in most of the world, neither is it unique to the US (sorry America, we’re not always exceptional), and the country that comes closest to the breadth of US discovery is Canada, at least on paper. In practice, it doesn’t go as far.

Here’s why. In Canada, they don’t start by firing off requests for production. The obligation to produce relevant documents is automatic under the Ontario Rules and falls first on the producing party.

Ontario Rule 30.03 (1) reads “A party to an action shall serve on every other party an affidavit of documents (Form 30A or 30B) disclosing to the full extent of the party’s knowledge, information and belief all documents relevant to any matter in issue in the action that are or have been in the party’s possession, control or power.” [emphasis added]

Aff of Docs
             Yes, it’s as exciting as it looks.

A later subrule describes how the affidavit should separately list documents being produced, and documents for which privilege is claimed. (In practice, for large productions documents are not individually listed, but grouped, as “emails from persons X, Y, and Z, 2009-2012” etc.)

Here come the teeth. The subrule titled “Lawyer’s Certificate,” is where attorneys have to put their name on the line:

30.03 (4) Where the party is represented by a lawyer, the lawyer shall certify on the affidavit that he or she has explained to the deponent, (a) the necessity of making full disclosure of all documents relevant to any matter in issue in the action [emphasis added again]; and (b) what kinds of documents are likely to be relevant to the allegations made in the pleadings.

Once again, this subclause (a) drives home the point that, just as in the US, everything relevant and not privileged must be produced, and moreover, Ontario lawyers had better think twice before cavalierly turning a blind eye to under-production by their clients. As for subclause (b) about what is likely to be relevant to the allegations made in the pleadings, while it might be thought that Ontario’s standards of pleading require more specificity than the US Federal Rules, that is no longer true, if it ever was, since the US Supreme Court decided Bell Atlantic v Twombly 127 S.Ct. 1955 (2007) and Ashcroft v Iqbal 556 U.S. 662 (2009).

(It might have been thought that the standards of pleading are more lax under the US so-called “Notice” pleading under Fed. R. Civ. P. 8(a)(2)”a short and plain statement of the claim”, than they are under Ontario’s Rule 25.06 (1) that “Every pleading shall contain a concise statement of the material facts on which the party relies for the claim or defence, but not the evidence…”; but the difference if ever there really was one is now non-existent ever since the two decisions above-mentioned.)

Client, have you REALLY told us about all your ESI?

All right, you say. What happens in that northern utopia if the receiving party believes the opponent’s production is not complete? The same thing that happens here in the US. A motion to compel, which there is brought under Ontario Rule 30.06. But think about it. The lawyer acting for the receiving party has to think long and hard before doing that, because it in effect says to the other lawyer (and asserts to the court) “your certification was false.” The receiving party does not lightly demand more; counsel has to make a bona fide assessment whether or not the producing side has done enough to fulfill its obligations.

The psychological, social, and professional dynamic is fundamentally different just because their rule reverses who goes first.

The producing party’s initial production creates facts on the ground right away, and if the receiving counsel wants to argue it’s not enough, s/he needs some genuine basis for doing so. And contrary to a silly cultural stereotype, they will not hold back from demanding more out of politeness. Canadians aren’t that nice. Least of all, Canadian litigators. If they see a reason to suspect there’s more out there, they’ll go after it as aggressively as here in the US. But the starting point is having a reason. Lawyers who have no reason other than being a jerk develop a reputation quickly, and for them even a big city like Toronto can become a small town. Back when I practiced there, we knew who the jerks were.

(Canadians have stereotypes about Americans too. The Canadian half of me thinks my American half is stupid. My American half doesn’t care.)

Ford May 1-14
Speaking of being a jerk…

In the US, with the requesting party making the first move by a request for production, demanding too much is so commonplace that it sets the stage for a time-wasting and unnecessary proportionality or burden argument from the get-go. The imperatives of the situation US lawyers are placed in makes jerk behavior more likely, because it’s safer than failing to ask for enough.

This isn’t to say that Ontario judges don’t see fights about scope and proportionality; their rules committee has had to cover the principle of proportionality too, which means that it’s still an issue there. But the fights tend to be less common, and the volumes of ESI that are reviewed and produced tend to be less.

Again, this also isn’t to say that everything about their courts is better than here. Far from it. Complex civil cases take very much longer from commencement to trial there than they do in the US; a recent landmark decision on auditors’ liability took 12 years from initial filing to trial, a glacial pace that would not be tolerated here. Much of this slowness is due to insufficient allocation of resources to the courts in Ontario and elsewhere in Canada; the system moves with less urgency than a crowded DMV office. It was that way when I practiced law there 20 plus years ago and it’s still that way now.

But those issues aside, the Canadian practice of produce first then fight only if the receiving party believes relevant information was not produced has the effect of reducing the money and time spent on discovery, while still preserving the principle that broad discovery is the best avenue to a just result.

Cliff Shnier
Insightful Electronic Discovery Consulting
Phoenix, Arizona



Northern Exposure — E-Discovery in Canada

September 16, 2010

On New Year’s Day, 2010, the province of Ontario became the latest North American jurisdiction to amend its rules of civil procedure to address the discovery of electronically stored information. Yet it mentions the phrase “electronic discovery” once and once only. The United States Federal Rules of Civil Procedure were amended in 2006 in at least twelve places to specifically refer to electronically stored information in discovery. Thirty states since that time have followed suit. One Canadian province, Nova Scotia, has also amended its rules. Now Canada’s largest province, home to nearly one-third of the country’s population and more than half of its lawyers, has amended its rules of civil procedure in a unique way a way that might best be described as either troublingly vague, or a stroke of genius. The relevance to US practitioners is this: in many categories of complex litigation, be it in the financial sector, or in intellectual property, or in energy, actions that may be in the US Federal Courts may very well have a Canadian parallel action, and most often that will be in the Superior Court of Ontario. If you think that “up there” e-discovery is not as far along as in the US, think again.

Ontario’s amended Rule 29.1.03(4) reads as follows: “In preparing the discovery plan, the parties shall consult and have regard to the document titled “The Sedona Canada Principles Addressing Electronic Discovery” developed by and available from The Sedona Conference.”

That’s it. “Electronic discovery” is mentioned only here, within the title of a document that lawyers “shall consult and have regard to.” For observers of the U.S. legal scene, this seems naïve. How do you enforce a rule like this? What Ontario has done either invites difficulty, because on its face this looks vague; or, it has placed on its legal profession – including its judiciary — a clever mandate to become well-informed and act like grown-ups. It may turn out to be the smartest way yet that any jurisdiction has amended its rules for electronically stored information.

Consider this. Aside from the odd fact that a tourist town in Arizona is mentioned in the rules of a Canadian province 2000 miles away, this is remarkable for other reasons. No other jurisdiction has actually mentioned the Sedona Principles or the Sedona Conference by name in its rules. Look at the U.S. federal rules amendments and commentary. You won’t find it, though it’s a known fact that The Sedona Conference was a key source of input to the U.S. rules committee. Notice that the document referred to in Rule 29.1.03(4) is not simply the list of enumerated principles, but the entire publication, 54 pages in length. That’s a lot of content, but not burdensome.

Now take a step back and look at the context around this one subrule, the broader “discovery plan” rule 29.1 This rule requires the parties to litigation to agree upon and file with the court a written discovery plan within 60 days after the close of pleadings. Subrule 29.1.03 (3) states: (3) The discovery plan shall be in writing, and shall include, (a) the intended scope of documentary discovery under rule 30.02, taking into account relevance, costs and the importance and complexity of the issues in the particular action; (b) dates for the service of each party’s affidavit of documents (Form 30A or 30B) under rule 30.03; (c) information respecting the timing, costs and manner of the production of documents [under Rule 30.01(1) “documents” includes electronic data] by the parties and any other persons…. (d) any other information intended to result in the expeditious and cost-effective completion of the discovery process in a manner that is proportionate to the importance and complexity of the action. The subrule immediately following is the one telling the parties they “shall consult and have regard to” Sedona Canada.

When read in context, the significance becomes clear. The first Principle states “Electronically stored information is discoverable.” A discovery plan that doesn’t deal with electronically stored information will violate Rule 29.1. In all likelihood, so will a discovery plan that doesn’t take into account the other Sedona Canada principles, such as:

 • Principle 3, which states that parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information as soon as litigation is reasonably anticipated.

 • Principle 4, which states that parties and counsel should meet and confer soon and on an ongoing basis.

 • Principle 8, which states that the parties should agree early on the format in which electronically stored information will be produced.

• Principle 9, which states that the parties should agree on or seek judicial direction to protect privilege and confidentiality.

Moreover, as it is the entire 54 page document and not just the list of principles, cursory attention will not suffice. The list does not mention metadata. However, in the discussion under Principle 8, we find at page 30: “The parties should strive to agree on a methodology of production that (a) preserves metadata and allows it to be produced when relevant.” The document explains what metadata is; it also does a good job explaining in clear and concise terms a lot of the other terminology and issues pertaining to electronic discovery.

The amendments to the U.S. rules have been in effect for nearly three years. Yes, they neatly specify that at the Rule 26(f) meet and confer the parties discuss the preservation, forms of production, and procedures for dealing with inadvertent disclosure of electronically stored information. And yes, they provide a process for requesting a specific form of electronic production, and a procedure for objecting to that requested form, and a default minimum standard for a form of production, under Rule 34(b). And so on.

Yet for all that specificity, we’ve seen disputes and lawyers getting into trouble. Nothing in the federal rules tells lawyers to read the U.S. version of the Sedona Principles. In all likelihood, this means that most U.S. litigators have not read the Sedona Principles. It might have saved some of them from a lot of trouble. Like Canada’s version, it is literate, educational, and at 102 pages, not unduly burdensome. The operative words of the Ontario amendment are “shall consult and [shall] have regard to” the Sedona Canada Principles. Though it sounds polite, this is not a suggestion. It is mandatory language telling lawyers to acquaint themselves with material they need to know. For additional “teeth”, look at Rule 29.1.05: “On any motion under Rules 30 to 35 relating to discovery, the court may refuse to grant any relief or to award any costs if the parties have failed to agree to or update a discovery plan in accordance with this Rule.” This is in addition to the court’s power to impose cost penalties and other sanctions found elsewhere in the Ontario rules, and in its inherent authority. Keep in mind, “costs” in Ontario generally means something much more than in the United States. It means that the losing party will pay a sizeable chunk of the winning party’s legal fees. That’s a mighty big set of teeth right there.

Some things DON’T happen first in California

July 9, 2009
Yes, we're still broke, but at least we've solved forms of production of ESI

Yes, we're still broke, but at least we've solved forms of production of ESI

Governor Arnold Schwarzenegger signed California’s Electronic Discovery Act on June 29, 2009 to take effect immediately “due to urgency”.  Two and a half years after the federal rules amendments, and now they say it’s urgent?  Considering the condition of the state’s finances, you’d think California was going to win a pile of money if it got this done by the end of June.   

Here’s the link to Assembly Bill 5, the Electronic Discovery Act: http://www.leginfo.ca.gov/pub/09-10/bill/asm/ab_0001-0050/ab_5_bill_20090629_chaptered.pdf

The California Code of Civil Procedure is statutory, so amending it has to be by statute rather than a regulatory power delegated to the court. 

In substance, the California amendments are similar to the amendments to the Federal Rules that went into effect December 1, 2006.  In style, the California amendments don’t have any of the look and feel of the federal rules.  They go into greater detail about steps to be followed by the parties in certain situations, and they follow the numbering scheme of the California CCP, which bears no resemblance to the numbering in the federal rules.    

Other states, such as Arizona, vest the authority for their rules of civil procedure in the courts, as we do federally, subject to a theoretically-possible legislative reversal.  The Arizona rules amendments pertaining to electronic evidence went into effect January 1, 2008 by order of the Chief Justice of the Supreme Court of Arizona, and the numbering and language is almost identical to the Federal Rules.   Simpler that way.

Postscript:  The words “Governor Arnold Schwarzenegger” almost sound normal now, he’s been in that post for so long.  The novelty and patent improbability of those three words together has nearly worn off.  Just in the nick of time, we can now start getting used to “Senator Al Franken.”  America, what a country!

If you don’t know, just ask!

June 11, 2009


Luckily the LAPD excels in crowd control.

Luckily the LAPD excels in crowd control.

“The Rule of Law in the Wild Wild West:  Ethics and E-Discovery.”  This is the title of the keynote address on the second day of LegalTech West Coast in Los Angeles Thursday June 25, less than two weeks from now.  My prediction:  it will attract a standing room only audience.    The mailing describes this session as “essential and timely”.  It sure is.  I can visualize an overflow crowd of anxious lawyers, all seeking advice on how to avoid punishment from the courts for e-discovery errors, spilling out of the convention center and onto Figueroa Street.

 The law of electronic discovery has taken a sharp turn into the scary realm of sanctions against lawyers.  First, the Qualcomm[i]  decision in January 2008.  In that case the company Qualcomm was sanctioned $8.5 Million for withholding 46,000 relevant e-mails, and several of its lawyers were referred to the California State Bar for discipline for having turned a blind eye to the obvious red flags that their client wasn’t making full disclosure. 

Now we’ve got a case where it’s the lawyers only who are getting sanctioned:  Bray & Gillespie Management et al v Lexington Insurance Company, 2009 WL 546429, United States District Court, Middle District of Florida, March 4, 2009.  For the full decision, click here.

Magistrate Judge Karla Spaulding had harsh words for two individual lawyers and their law firm, Reed Smith, representing the plaintiff Bray & Gillespie (B&G). 

 A little history:  The action had been commenced in February 2007.  B&G had originally been represented by Anderson Kill & Olick (AKO), and the partner there having carriage of the action, “Partner E”,  moved from AKO to Reed Smith in January 2008, taking this case with him.  In March 2008 Reed Smith officially filed as the law firm of record for the plaintiff.  Another lawyer at Reed Smith, “Partner B” began working on this matter by May 2008.

In September 2007 plantiff’s counsel (Partner E, then still at AKO) received a Request for Production from the defendant Lexington’s law firm (Carlton Fields) requesting electronically stored information in native format with metadata.  Counsel for the plaintiff did not object to the requested form of production

  • neither within the 30 day limit after receiving the RFP imposed by Rule 34(b)(2)(A) ;
  • nor in response to a motion to compel in January 2008 – we’re now at the time that Partner E moved from AKO to Reed Smith;
  • nor at a discovery conference in March 2008,
  • nor in a response to a renewed motion to compel in March 2008 – we’re now in the month that Reed Smith became official attorneys of record for the plaintiff;
  • nor any time up to their delivery of discs purporting to contain responsive electronically stored information on April 30, 2008. 

Rule 34(b)(1)(C) provides that the requesting party may specify the form in which it wishes to receive production of electronically stored information, and under Rule 34(b)(2)(D) the responding party may within 30 days object to the requested form, stating the form it intends to use instead.  Rule 34(b)(2)(E) provides that in the absence of any specification of a form of production in the request, the producing party must produce it in the form in which it is ordinarily maintained or in a reasonably usable form. 

The committee notes to this rule state:

And don't try converting it into this form either.

And don't try converting it into this form either.

“The rule does not require a party to produce electronically stored information in the form in which it is ordinarily maintained, as long as it is produced in reasonably useable form.  But the option to produce in a reasonably useable form does not mean that a responding party is free to convert electronically stored information from the form in which it is ordinarily maintained to a different form that makes it more difficult or burdensome for the requesting party to use the information efficiently in the litigation.  If the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature.”

As Craig Ball commented six months before the amendments to the Rules became effective, “That means no more “naked” .tif or PDF files stripped of searchable data layers.”[ii]  (Forget about searching the internet for a photo to go with this phrase.)

And what did the defendant’s attorneys receive from the plaintiffs’ law firm?  TIFF images with no searchable data whatsoever, approximately 100,000 e-mails and roughly an equal number of other electronic files that may or may not have been attachments to the e-mails; there was no way to affiliate any e-mails to any attachments.  In other words, exactly what Rule 34(b), the Rules Commentary, other commentators, and the flood of CLE’s on the rules amendments, had been all saying since early 2006 would no longer be acceptable. 

After objecting to this form of production in mid-May, Lexington filed a motion for sanctions against B&G, and the hearing was set for June 25, 2008.  At that hearing, Judge Spaulding heard testimony from, among others, Daryl Teshima, a California lawyer and well-known electronic discovery consultant. 


samsung-pn63a650-reviewDaryl “testified that the discs contained ESI that had been converted to TIFF images, not scanned copies of paper documents.”  Anyone with even one-tenth the knowledge that Daryl has can spot at a glance the difference between TIFF images created directly from ESI using an e-discovery processing program and TIFF images created from scanned paper.  It’s the difference between high-definition and regular TV. 


At the conclusion of the hearing on June 25, 2008, Judge Spaulding found that the plaintiff, through its 10017163~Courtroom-Scene-Posterscounsel “deliberately manipulated the electronically stored information in such a way as to withhold from the defendants the information that had been requested, specifically metadata,” and further found that the problems with the ESI production were caused by the plaintiff and its agents, and therefore “they will be the ones to bear the burden of whatever cost it takes to get” the ESI produced in a usable format.  They were given until July 11, 2008 to produce native files with metadata or equivalent.  The plaintiff appealed to the District Judge, but to no avail. 

That wasn’t the end of it.  In early October 2008 Judge Spaulding – apparently on her own motion — issued two notices:  one re-opening the sanctions hearing, and the other directed at Reed Smith and the individual attorneys to afford them “an opportunity to file a supplemental response to the sanctions motion addressing why sanctions should not be imposed against any or all of them as the attorney(s) responsible for the allegedly sanctionable conduct.” 

No lawyer wants to be on the receiving end of a notice like that. 

Not a good day at the office

Not a good day at the office

The re-opened hearing took place on December 8, 2008.  Here it came out that after the defendant’s objection to the form in which it had received production, the parties had discussions between mid-May and mid-June 2008.  At page 14, the judge found that during those discussions, one of the Reed Smith attorneys, Partner B, had concocted a story about the process that B&G and AKO used to gather the discoverable documents. [Partner B] explained that  ‘B&G printed the documents from B&G’s electronic systems. B&G sent the printed documents to Anderson Kill. Anderson Kill scanned the documents to create TIFF images of them . . . , from which production was then made…’ ”

This convoluted process, if it was true, would explain why the production consisted only of TIFF images with no searchable text or meta-data.  Back in the mid-1990’s, this was actually the way electronically stored information was processed to get it into reviewable form: open the native files in their native application or in some print utility software, print to paper, scan the paper to TIFF images. 

Early e-discovery processing was like a "Rube Goldberg" contraption.  Except a lot more expensive.

Early e-discovery processing was like a "Rube Goldberg" contraption. Except a lot more expensive.

However, if you wanted them to be in any way useful for a review, you’d also OCR the text and have bibliographic coders capture the date, from, to, title, etc.  None of that was done here because it didn’t have to be, because the electronic data hadn’t been printed and scanned.  While the plaintiff’s case was still being handled by the previous law firm in 2007 it had in truth actually been processed in a perfectly normal up-to-date way:  using one of the now-numerous e-discovery conversion programs, in this case, Extractiva.  It was then loaded into an Introspect database, also quite normal and acceptable for 2007.  The Extractiva program created the TIFFs, populated the fields for date, from, to, title, etc., and captured the full text.    

Technology like Extractiva has been around since the late 1990’s.  Any law firm authorizing e-discovery the old inefficient print-then-scan way by the middle of this decade would be guilty of malpractice.  Anderson Kill didn’t do that in 2007, and had Reed Smith been in charge of the case then, there’s no way they would have done it either.  We’re talking about a couple of top-tier law firms here.

In any event, somehow the data produced to the defendants on April 30th consisted of the nice-looking TIFF images that would result from using a tool like Extractiva, but apart from a mere load file delineating the start and stop of each document, the images were accompanied by none of the searchable data that would make them useable.  How this happened is unclear; normally, exporting a production set from a program like Introspect requires conscious human intervention to select which fields of data get exported and which do not.  To the credit of the two partners, at least the associates and other lower-rung employees didn’t end up taking the fall for this.

The judge continued, at page 15: 

lawyerwithlaptoponhead_edited“In creating this false tale, [Partner B] ignored numerous facts known or readily available to him about the actual process that was used to collect ESI and produce it to Lexington.”

Among those numerous facts:   “Reed Smith attorneys had access to the Introspect database before and after AKO transferred it to Reed Smith. If he had reviewed the Introspect database, [Partner B] would have seen that it contained ESI metadata. Finally, [Partner B] could simply have contacted AKO to learn how the information was gathered. …   The false explanation [Partner B] gave regarding how ESI had been collected was based, at best, on willful blindness which unreasonably prolonged and multiplied the proceedings regarding the ESI discovery dispute.” 

At the December hearing, Partner B testified that he had erroneously assumed the plaintiff’s electronic data had been printed and scanned to TIFF because he had heard about summer interns standing in front of scanners, and he incorrectly leaped to this conclusion.  (There had been a paper-source component that would explain the scanning activity.) 

The result:  Reed Smith and the individual attorneys were ordered to pay the sanctions themselves, and the judge specifically excused their client B&G from any liability. 


You can start by asking the computer guy

You can start by asking the computer guy

I don’t wish to appear either too critical nor too defensive of Reed Smith and these two attorneys when I say this, but there’s a bit of a “perfect storm” element to this.  Reed Smith took this case over from another firm (AKO) just as discovery was heating up but after the client’s electronic data had been collected and processed, so they didn’t have their own institutional knowledge of how this had been done.  Admittedly, the lead partner was the same person, but let’s face it, lead partners on big cases usually don’t work on e-discovery at any level of detail.  Compounding this problem, the relationship with the former law firm appears to have been frosty, though when pressed, the Reed Smith attorneys admitted that AKO had not been uncooperative or obstructive. 

Still, it’s easy to envision Reed Smith not getting into this kind of trouble if they had managed this case from the start.  It doesn’t excuse what happened, but it does inject a certain “there but for the grace of God go I” element.  The change in law firms introduced a possible point of failure in communication and understanding that requires extra effort to overcome.  If you’re one of these lawyers, and you think you know the answer to how the ESI was processed, and don’t relish having to go back to the previous law firm to find out for sure, it’s easy to see how sticking with what you think you know would feel more comfortable; it also might look like the path of least resistance. 

On the other hand, the mere fact that the ESI was in an Introspect database necessarily implies that there’s something more than mere TIFF images there.  I know that, lots of litigators know that. However, lots of litigators don’t know this – but by now they should. 

What are the lessons to be learned from this?

One.  If you don’t know, ask.  In a large firm like Reed Smith, that doesn’t even require asking someone external who might charge fees.  This firm has a group of practice management and litigation support personnel who know this stuff cold.  If you’re in a firm that doesn’t have these internal resources, there are plenty of consultants out there to help you.

Two. If electronic discovery is not your forté, whatever you think you know may not be correct.  On top of which, you don’t know what you don’t know.  You may vaguely recall having heard that electronic data was made ready for review and production by printing it and then scanning it.  If your memory is anything like mine, you might think you heard this two years ago when it was really twelve years ago.  Technology changes dramatically in a matter of months, not years. 

Three.  Never make an assertion or representation to the court – or to opposing counsel – that turns out not to be true if you do not have a solid good faith reason for believing it to be true at the time you assert it.  Suppositions and assumptions are unacceptable. 

Four.  A little knowledge is a dangerous thing.  Too many lawyers only have a little knowledge.  This episode shows how all too many lawyers know just enough about electronic discovery, in snippets and disconnected fragments, to be dangerous – mostly to themselves.  What was the purpose of going through these gyrations of trying to produce images stripped of all metadata anyway?   There’s an urban myth among lawyers that if they produce native files with metadata, the other side’s going to find some nugget in there – whatever “there” is —  that’s going to set off a whole string of calamities starting with losing the case, then losing the client, then losing a malpractice lawsuit, then followed by hail, frogs, locusts, and so on.

The defendant had specified in its RFP that it wanted the plaintiff to produce “such information, without deletion or alteration of meta-data, in its native form.”  If you receive an RFP phrased like this and you’ve got a concern about it, find out from people who know what these words mean

  • what are legitimate concerns,
  • what are unfounded concerns,
  • what might be possible resolutions,

and then work it out in the meet and confer.  There’s the kind of metadata that is essential for meaningful review and production of data.  And there’s the kind of metadata that simply adds to the information overload that you don’t want to have to review prior to production and the other side doesn’t really want to have to look at if you do produce it to them. 

Can we not get over this metadata bogeyman, already? 

Some things aren't as frightening as they first seem

Some things aren't as frightening as they first seem

Discovery disputes are bad enough.  Discovery disputes arising from fear of the unknown are worse.  They’re worse because they’re totally avoidable with some real education, with some help from resources either inside the law firm or from the consulting community, and with some reasonable discussions with the other side.

Five.  About the words “some real education” just mentioned.  One-hour lunchtime CLE’s obviously haven’t gotten the job done.   Judge Shira Scheindlin, of Zubulake fame, has been quoted that e-discovery now just means discovery.  She exaggerates, though not by much, to make a serious point.  As Browning Marean, Tom O’Connor, and Ralph Losey discussed in Ralph’s recent “New Tonight Show” post on his blog (here), discovery of written material is now almost entirely e-discovery,  unless you’re litigating the Louisiana Purchase.   For a more detailed discussion of the ethical implications of e-discovery competence or lack thereof, and the need for much more lawyer education and training, go to these two other posts on Ralph’s blog, here and here.

Closing thought.  Three years ago, another judge from the same District Court got us laughing from coast to coast with his creative resolution to another discovery dispute.  He ordered counsel to settle it by “Rock, Paper, Scissors” on the steps of the federal courthouse in Tampa[iii]. 

That case: funny.  This case: not so funny.





[i] Discussed in my article rocks-and-hard-places-march-2008.

[ii] Craig Ball, The Train’s About to Depart, Law Technology News, June 2006, at 44.

[iii]  Avista Management v. Wausau, 05-cv-1430, June 6, 2006, Presnell, USDCJ.  Copy here.

Candy or Jagged Glass? Part Two.

May 14, 2009

My last post (below) introduced the report issued in March by the Institute for the Advancement of the American Legal System, in collaboration with the American College of Trial Lawyers. 



As I said, most of the 29 recommendations (they call them Principles, but unlike Sedona, they are not numbered) in the IAALS / ACTL Report are well-taken.  The ones I mentioned previously mostly restate what others such as Sedona or the Rules Committee have said before, but that’s not a criticism. 

A couple that I didn’t mention yesterday are quite innovative.  These are, at page 10, fact-based instead of notice-based pleading, and at page 11, a new summary form of action by which parties can submit applications for say, interpretation of a contract, without triggering a right to discovery or trial.  This worldly outlook and and openness to the way things are done in other countries is refreshing. 

Now the two or three Principles that are either the best candy in the bag, or jagged glass.  Please forgive the lengthy direct quotations. 

First, the Report’s Principle on automatic initial disclosure, at page 7:

  • Shortly after the commencement of litigation, each party should produce all reasonably available nonprivileged, non-work product documents and things that may be used to support that party’s claims, counterclaims or defenses.

 The narrative says that this automatic initial disclosure goes further than the current Rule 26(a)(1)(ii), though let’s be fair, reading them on paper, not by a whole lot.   Taken alone, this recommendation is indisputably sensible.  But not if this is all a party has to produce, which may be the effect of the next two bullets. 

 The next bullet appears at page 8.

  •  “Discovery in general and document discovery in particular should be limited to documents or information that would enable a party to prove or disprove a claim or defense or enable a party to impeach a witness.”

 And then, at page 9:

  •  “After the initial disclosures are made, only limited additional discovery should be permitted. Once that limited discovery is completed, no more should be allowed absent agreement or a court order, which should be made only upon a showing of good cause and proportionality.”

 The report commentary continues: 

“This is a radical proposal. It is our most significant proposal. It challenges the current practice of broad, open-ended and ever-expanding discovery that was a hallmark of the federal rules as adopted in 1938 and that has become an integral part of our civil justice system. This Principle changes the default. Up to now, the default is that each party may take virtually unlimited discovery unless a court says otherwise. We would reverse the default….”

 “Efforts to limit discovery must begin with definition of the type of discovery that is permissible, but it is difficult, if not impossible, to write that definition in a way that will satisfy everyone or that will work in all cases….  Whatever the definition, broad, unlimited discovery is now the default notwithstanding that various bar and other groups have complained for years about the burden, expense and abuse of discovery.”

 “This Principle changes the default while still permitting a search, within reason, for the “smoking gun”. Today, the default is that there will be discovery unless it is blocked. This Principle permits limited discovery proportionately tied to the claims actually at issue, after which there will be no more. The limited discovery contemplated by this Principle would be in addition to the initial disclosures that the Principles also require. Whereas the initial disclosures would be of documents that may be used to support the producing party’s claims or defenses, the limited discovery described in this Principle would be of documents that support the requesting party’s claims or defenses. This Principle also applies to electronic discovery.”

Arc de TriompheNo kidding about calling this a radical proposal.  It’s essentially the continental European model, in which parties have to disclose only the documents on which they intend to rely, and whatever discovery there is after that is tightly limited.   Here’s Article 753 of France’s Nouveau Code de Procédure Civile:    “Pleadings shall set out expressly the claims of the parties as well as the issues of law and fact which are the basis of each claim. A memorandum listing the documents in support of these claims shall be annexed to the pleadings.”  (In the original French:     “Les conclusions doivent formuler expressément les prétentions des parties ainsi que les moyens en fait et en droit sur lesquels chacune de ces prétentions est fondée. Un bordereau énumérant les pièces justifiant ces prétentions est annexé aux conclusions.”)  You can search high and low through the rest of this Code and you won’t find any mention of any further right of discovery or obligation to produce.  C’est tout, mes amis.  Click here to get to the Legifrance site English translation.

 I’ve got three points about these three Principles in the IAALS Report. 

 1.  These three Principles make most of the other recommendations in the report unnecessary and academic.  If the scope of discovery is so drastically limited, then we really won’t need more proportionality, more cooperation, more frequent meet and confers, more  technical education of bench and bar about electronic discovery, etc.   Those are all sorely needed if we continue with our wide-discovery regime.  But if we’re tightening discovery’s scope so much by these three, none of the rest of the recommendations in the IAALS report are necessary.

 2.   What exactly are the mechanics of obtaining the additional limited discovery after the initial disclosures?  The report provides no guidance as to how a party is supposed to request from its opponents these documents that would support its claims or defenses. 

Clearly the drafters of the report intend something much more specific than document requests under the current practice.  But what could be more specific that would realistically be practical? 

Overly-broad discovery requests already find disfavor with the courts.  Mancia isn’t an isolated decision.  Mancia v. Mayflower Textile Servs. Co., 253 F.R.D. 354 (D. Md. 2008), discussed here.  

 Under the current practice parties request documents that fall within certain date ranges, from certain known individuals, pertaining to certain subject-matters.   So if the report’s writers are saying that the courts’ standards are still too loose, then this has to imply that the only way a litigant will be able to request documents that support its side is by identifying them specifically. In other words, already knowing exactly what they are. 

If you know this much about a document, you probably already have it, in which case, the request shouldn’t be for production, it should be a request to admit authenticity. 

3.    Nature abhors a vacuum.  As ridiculous as our broad lawyer-controlled discovery may seem, it may fulfill a function that in other countries might be the job of judicial officers or other bureaucracies we don’t have.  Delivering a guest lecture at Duke University in 2003, a German law professor remarked:

 “If a European lawyer looks at… the United States, he is impressed by the extent to which court litigation, rather than legislation and administrative action, is used as a means to cure defects in the structures and practices of important social institutions.”

 “What surprises the European observer about American product liability litigation is the stupendous volume of litigation, the size of awards made to successful claimants, and the fact that it is not uncommon for many thousands of claims to be bundled together and dealt with in a single trial.  All developed legal systems must ensure the safety of products in the interest of the consumer.  It would seem, however, that Americans, with their traditional mistrust of governmental authority, rely not so much on the initiative of administrators or private prosecutors, but rather on private litigation as the chief regulator of corporate action in the product safety field.  If this analysis is correct, a strong case can be made for the view that to the extent to which private litigation serves the vindication of a public interest, the parties must be equipped with robust discovery procedures to ferret out the truth, even at the expense of business or personal privacy.”   Hein Kotz, Civil Justice Systems in Europe and the United States, 13 Duke J. of Comp. & Int’l L. 61, at 74 -75.

As societies, the United States and most other English common-law systems have made a choice:  that it is better to find the memo that recommends adding addictive substances to tobacco, or the one that calculates that a recall of tires will cost more than injury lawsuits, or as we will no doubt soon see, the directive that lowered the underwriting standards for mortgages to the point that a loan officer had to get authorization from higher up not to approve a mortgage. 

This is not a diatribe to protect the pool of work for e-discovery consultants and vendors.  Frankly, the e-discovery industry hasn’t served the legal profession and business as well as it could have.  And the legal profession, as the IAALS / ACTL report itself observes, has to do a better job of understanding electronically stored information. 

Fifth Avenue in the Rain.  Frederick Childe Hassam.  1917.

Fifth Avenue in the Rain. Frederick Childe Hassam. 1917.

Discovery is a means to an end and not an end in itself.  But it should not be viewed as an annoying roadblock on the way to trial.  Only two percent of all federal actions go to trial.  In other words, the dispositive stage of litigation is in most instances discovery.  While the cost of discovery should not be a reason that a case has to settle, the discovery stage properly conducted should be used as the opportunity to settle. 

If we do away with broad discovery, we  reduce that opportunity.  Remember, Qualcomm v Broadcom went to trial because Qualcomm had failed to fulfill its discovery obligations.  Had it not been for that discovery abuse — concealment of thousands of highly relevant e-mails that killed Qualcomm’s case on the merits–  the trial, which was long and expensive, would not have occurred because the case clearly would have settled.  (For my article on the Qualcomm decision, click here.)    

We just amended the rules two years ago.  It’s too early to declare them a failure.  It’s also too early to declare them a success.  Let’s redouble our efforts to make the best of them by controlling discovery, not by throwing it away.  We like our disputes resolved where there’s been an opportunity for a full disclosure of all relevant facts.

NOTE TO READER:  This post alone does not do this subject justice.   Both Mary Mack and Ralph Losey have thoughtful and entertaining posts about the IAALS / ACTL Report in their respective blogs, and I highly recommend them.  For Mary’s, click here, and for Ralph’s, click here.

Candy or Jagged Glass? Part One.

May 11, 2009

Posted May 11, 2009

The amendments to the Federal Rules of Civil Procedure pertaining to electronically stored information went into effect on December 1, 2006.  If you needed me to tell you this, you’ve stumbled into the wrong blog. 

This change marked only the seventh time since 1938 that the rules have been amended.  The mean time between amendments to the Federal Rules of Civil Procedure is just under ten years.  Amending the rules is not a step taken lightly.

Some things from the 1930's are very enduring

Some things from the 1930's are very enduring

The effort that went into these amendments is obvious from reading the Commentary that accompanies them.  It spanned six years; it consumed hundreds of hours of hearings, countless meetings, and submissions from the best and brightest of bench, bar, and think-tanks like The Sedona Conference; each of these submissions in turn represents tremendous devotion of time and thought by their respective presenters. 

My point?  That this was a tremendous collective effort by the body vested with the statutory authority to promulgate the rules (28 U.S.C. § 2073) and by the professional groups providing input to the committee. 

Yet just past the two year mark, an organization that did not exist at the time the new rules were being debated is now calling for a radical overhaul of the Rules of Civil Procedure.  That organization is the Institute for the Advancement of the American Legal System (IAALS), founded in 2006.  It is affiliated with the University of Denver.

In March 2009 the IAALS issued its report titled:  “Final Report On The Joint Project Of The American College Of Trial Lawyers Task Force On Discovery and  The Institute For The Advancement Of The American Legal System.”  Click here to download a copy.

WitnessForProsecut38 Top billing in the title goes to the older organization, the American College of Trial Lawyers, founded in 1950.  To anyone who has practiced litigation in the United States or Canada, as I have, the ACTL is enormously prestigious.  Invitation to membership is a pinnacle in the career of any barrister in North America. 

 There are 29 boldface bullet points. (The authors did not number them).  If you think of this as a bag of candy, among these 29 candies there are two or three that are either the best candies of them all – or they are chunks of jagged glass.   

In general terms, the majority of the recommendations call for:

  • Proportionality as the governing principle for all discovery.  We have some provision for this in R. 26(b)(2)(C).
  • Broader initial automatic disclosures, meaning broader than currently required under Rule 26(a)(1).
  • Early meet and confer to discuss preservation and storage electronically-stored information.  This is the subject of Rule 26(f).
  • A good faith duty to preserve electronically stored information, but not to the unreasonable extent that parties must take every conceivable step to preserve all potentially relevant electronically stored information;  this is substantially Sedona Principle 5.
  • Absent a showing of need and relevance, a party should not be required to restore deleted or residual electronically-stored information, including backup tapes.  This is pretty much the “not reasonably accessible” provision of R. 26(b)(2)(B).
  • Sanctions should be imposed for failure to make electronic discovery only upon a showing of intent to destroy evidence or recklessness.  A higher misbehavior threshold than the current Rule 37(e), but no real cause for indignation on the plaintiff side of the bar.
  • The cost of preserving, collecting and reviewing electronically-stored material should generally be borne by the party producing it but courts should not hesitate to arrive at a different allocation of expenses in appropriate cases.  In other words, no change from what we have right now.  Although there is no specific cost-bearing provision in the present Federal Rules of Civil Procedure, courts in cases involving a range of issues… have recognized that Rule 26(b)(2)(C) provides the inherent authority to shift the costs of discovery to the requesting party or apply the concept of proportionality.”   Michael R. Arkfeld, Arkfeld on Electronic Discovery and Evidence, §7.4 at p. 7-75 (2nd Ed.)

As noted in blue above, some of these points are already addressed in the amended rules; others are are stated in the Sedona Principles, or in the Sedona Cooperation Proclamation, and some are even voiced in recent court decisions.  Nevertheless, they benefit greatly from a fresh restatement; all the better when that comes from an organization as respected as the ACTL or as energized as the IAALS. witnesssm

Few would argue against these points.  The IAALS and the ACTL feel compelled to sound these trumpets because we still have far too much discovery cost, delay, and gamesmanship. 

So now we get to the bullet points that are either the best bonbons in the bag, or they are chunks of jagged glass.  That’s the subject of the next post.